Desperately searching for solidarity: the EU asylum saga continues

By Jean-Baptiste Farcy, Eimear O’Neill and David Watt, Odysseus Network OMNIA Project Team

The “refugee crisis” has disappeared from the headlines of European news, of course in part because of the Brussels terror attacks, but also apparently because the agreement between the EU and Turkey concluded on 18th March seems, at least temporarily, to have reached its real goal: preventing migrants, including asylum seekers, from leaving Turkey in the direction of Greece. However, this does not mean that the crisis is over, even if the EU and its Member States want to forget this difficult chapter in their history. We are therefore returning to the topic of EU solidarity, presenting what we learned at the Odysseus Network conference on 26 and 27 February, including the legal nature of solidarity, the reasons solidarity has failed and our hope for a better implementation of solidarity in the future.

1. The meaning of solidarity in EU law

Searching for solidarity in EU asylum and border policies requires that solidarity, the research subject, be defined. In the popular sense, solidarity refers to the existing relationship between a category of persons or entities which is the source of moral obligations. However, less straightforward is the legal nature and scope of solidarity. Indeed, solidarity is an ambiguous term in the sense that it lacks the precision of ordinary legal norms. Yet, solidarity is embedded in Article 80 of the Treaty on the Functioning of the European Union (TFEU) which is undoubtedly a hard law norm. Here lies the complexity for lawyers: Article 80 is hardly sufficiently concrete to oblige states to do anything particular, but it is material enough to be more than a nullity.

In order to clarify the legal construction of solidarity, it may be helpful to trace back to the Roman law origin of the term. Solidarity, in the Roman law of obligation, was a concept referring to the legal relationship existing between a group of people responsible for a debt. This concept of solidarity still exists in civil law tradition but it is most likely that the drafters of Article 80 distanced themselves from it as the necessary ex ante contract is absent here.

Another reading of Article 80 can arguably be based on the French social tradition. Here solidarity is grounded in the real existence of a social community, and solidarity is what binds individuals together according to Emile Durkheim. While this conception of solidarity was likely to be more influential in the framing of primary EU law, a social organism hardly exists at a pan-European level as the 2004 French and Dutch referenda on the Treaty establishing a Constitution for Europe demonstrated. The use of the term “solidarity” in Article 80, as in other provisions of the TFEU, could then be described as a dubious appropriation of an historical experience unfamiliar to the European construction. As a result, the constitution of an EU-wide solidarity was arguably bound to fail from the beginning as Article 80 remained empty in positivist terms.

Does it mean that the effectiveness of Article 80 ought to be void? The legal character of solidarity, as embodied in this provision, should not be dismissed too quickly, be it for its formal hard law nature. Given the theory of “effet utile”, a provision of EU law ought to be interpreted so as to best guarantee its practical effect. In that sense, Article 80 could be read as entailing both an obligation of means (engaging with others) and of result (reaching a fair result). It follows that it can be invoked in Court. Indeed, on the basis of Article 80 an infringement procedure could be brought either by the Commission (based on Article 258 TFEU) or by a Member State (based on Article 259 TFEU) for another Member State’s failure to take its fair share of responsibility in the implementation of the EU asylum policy, and a precedent for this does exist (for instance in the common agricultural policy, see Case 39/72 Commission v. Italy of 7 February 1973). However, a functional executive body effectively securing the enforcement of the Common European Asylum System (CEAS) is missing at the EU level which allows for normative dumping or limited normative solidarity, as we have recently witnessed across Europe.

Once we agree that Article 80 is not deprived of any legal effectiveness, the question is: solidarity with whom? According to the wording of Article 80, solidarity is only considered among Member States. As a result, the claim that solidarity has an external dimension in relation with third countries seems difficult to uphold, the extent of solidarity among Member States having yet to be defined, and Article 8 of the Treaty on European Union (TEU) hardly constitutes a sufficient legal basis either. More fundamentally, the fact that solidarity is only conceived in the context of inter-state relations is illustrative of the prevailing narrative. Indeed, the principle of solidarity and fair sharing of responsibility which ought to govern the CEAS is exclusively framed so as to meet the needs of the States, not the individuals. Therefore, a change of paradigm may be needed in order to move towards vertical solidarity, focusing on the effective protection of asylum seekers’ rights. The debate should then be reframed to concentrate on solidarity towards individuals in need of international protection rather than solidarity among Member States.

From that perspective, as long as relocation between Member States does not take into account, at least to some extent, the preferences of asylum seekers it cannot work as it remains synonymous with coercion for them. In a common area of Freedom, Security and Justice without internal borders, refugees should arguably be allowed to move throughout the Union while maintaining their rights, in a similar fashion, for instance, to the European protection order of Directive 2011/99 of 13 December 2011. This would first require that the European asylum system be more common and systematic than it actually is.

The lack of normative solidarity accompanied by the lack of physical solidarity have arguably paved the way of the current asylum crisis that has also transformed into a governance crisis. Indeed, the asylum acquis was designed for “beautiful weather” but, as the storm approached, the inherent weaknesses of the CEAS have only become more obvious.

2. Lacking solidarity in the EU Asylum Policy

It seems that the structure and implementation of the EU asylum policy are contributing factors to the lack of solidarity in Europe today. The very structure of the CEAS has engendered a lack of solidarity and fair sharing of responsibilities between Member States from the beginning. In a rather naïve approach, the creators of the EU asylum policy expected that a harmonisation of standards throughout Europe would level out standards between Member States, and this would therefore result in an absence of secondary movement of refugees. This simplistic assumption, however, failed to address the inequality of responsibilities of Member States resulting from their geographic location and proximity to refugee flows. These inequalities were compounded by the Dublin Regulation governing allocation of responsibility for asylum applications, which in principle, leaves frontier states responsible for the bulk of applications.

Moreover, although standards were harmonised at the EU level, the duty to implement these standards was left to the individual Member States, as usual. This led to disparities between recognition rates in different EU states, structural deficiencies in national asylum systems, unwillingness or inability to implement EU standards and a mistrust between Member States. Efforts to improve the system have not created any functioning governance of a Common European Asylum System. Finances are reallocated through funds such as the European Refugee Fund, but this does not cover the costs incurred by Member States, and the physical burden sharing foreseen by the Temporary Protection Directive has never been engaged. Although legislation on asylum has increasingly been harmonised, there has not been any significant reform of the EU’s Dublin mechanism for allocating responsibility. It is unsurprising, therefore, that when faced with a mass influx of refugees, the EU system was unable to help frontier states cope with the rapidly increasing demands on their asylum systems.

Even the Dublin system – once the cornerstone of the CEAS – has collapsed under the pressures of the migration flows of the past year. It has been widely acknowledged that the system is no longer working, but what is less often admitted is that it has in fact never worked. Its core premise is coercion of both Member States and asylum seekers, and the recent situation in Europe has proven that coercion is not a successful way of ensuring a well-functioning system. When faced with disproportionately large burdens and no guarantees that they will be shared, it is only natural that a Member State will defect from its responsibilities. Similarly, if refugees are carted off to a destination where they do not want to be, we cannot be surprised if they leave.

However, the EU has not responded to the growing burdens on frontier states and the system’s inability to fairly reallocate responsibilities by restructuring the system to improve governance and implementation and better deal with the current situation in Europe. Instead, it has focused on crisis-induced people-sharing initiatives. In line with the growing realisation that the Dublin system does not work, the EU has implemented hotspots and relocation, which temporarily derogate from the Dublin criteria that the first country of arrival is responsible for examining the asylum applications. Unfortunately, this approach is also coming up short. Member States are taking on much less responsibility than what is needed, with statistics from the Greek asylum service showing that as of 27 March 2016, only 18 of 28 Member State have pledged places, and only 574 transfers out of a planned total of 66,400 have been carried out from Greece. Moreover, the system is struggling to engage asylum seekers in the relocation process, with many preferring to move on than to wait around in order to have their application processed.

Although the hotspots and relocation mechanisms are not functioning well at present, this is not to say that they cannot work in principle. Certain measures must be taken if this system is ever to reach the target numbers of relocated asylum seekers. It will not only need to gain increased support from Member States, but it will also need to engage more with the asylum seekers themselves, so that they are knowledgeable about the process and can make an informed decision on whether to participate. Beyond the present hotspots and relocation initiative, which is only a temporary solution to the problem of drastically uneven responsibilities between Member States, the EU must also take steps to improve the CEAS in the long term. In this sense, the proposal for a permanent crisis relocation mechanism is something which should be seriously considered by policymakers.

But is relocation really the future of fair sharing of responsibilities between EU Member States, or is it merely a remedy which treats the symptoms of the ailing asylum system rather than the causes of its ills? Beyond the solutions proposed for crisis situations, there must also be a reform of the Dublin system of allocating responsibility, which dumps the bulk of responsibility with those states whose geographical location places them in the line of migration flows. The aim of Dublin is to quickly reach a decision on the state responsible for examining a claim in order to get the asylum seeker into the system as quickly as possible. Its successor should fulfil these aims while aiding the eventual integration of individuals benefitting from international protection into their host societies. A system which allocates responsibility fairly, reduces secondary movement and promotes integration is not an unrealistic goal. It can be achieved, provided the system takes into account the preferences of both Member States and asylum seekers, with, for example, a centralised European application processing system which gives applicants the possibility to trigger relocation to a country they have a link with, with much wider criteria than the current conditions for family reunification.

To achieve such aims, the EU will need strong political leadership capable of making a great leap forward. Future steps must address not only the need for a permanent and well-functioning crisis relocation mechanism, but also the structural flaws in the design of the CEAS which allow these crisis situations to emerge in the first place. We must move to a system which considers the wishes of the individuals. We must not force people to go where they do not want to go. We must remove country of first entry as the main criteria for determining which state is responsible for an applicant. And legal channels for asylum seekers to travel to Europe must be opened. But such changes won’t come easily. Achieving a fair and functioning system will require that politicians begin to lead public opinion rather than follow it. Politicians must argue in favour of difficult but necessary changes rather than doing what is politically expedient. In a Europe where there are more applicants for asylum than there have ever been in the past, they must convince the public that 1.3 million refugees is not too many for Europe when a small country like Lebanon can host 1 million. But is it unlikely that any politician would be brave enough to take the lead, given the risk of being ousted in the next election? Should we instead expect more decisive action from the EU agencies?

3. The EU Agencies to the rescue?

In times when the principle of solidarity and fair-sharing of responsibility seems to be hijacked by an intensely politicized debate, there can be a tendency to look for answers from centralized institutions. Reinforcing the EU agencies, in particular the European Asylum Support Office (EASO) and FRONTEX, to equip them with the resources – and importantly with the powers – to take action needed to manage the EU’s current challenges in the field of migration and asylum therefore appears at first glance to be a sensible avenue to pursue.

The current time, which has seen a huge rise in many Member States of the number of asylum applications, necessitates a strong agency to support the Member States in processing asylum claims. However, the expectations of the EASO have been enormous since its creation almost six years ago, despite the fact that the resources allocated to it do not seem proportionate for such towering expectations. The agency’s budget is six times less than that of Frontex, which highlights an overwhelming focus from EU Member States on the protection of the Schengen external borders at the possible expense of the resources of the “centre for excellence” in supporting the national asylum systems, as set out in the EASO regulation. Actually, the powers of EASO can hardly be considered significant. The agency is driven by Member States, its board comprising a representative from each of them, and it does not have the authority to call into question the functioning of asylum systems in Member States, and certainly has no mandate to issue decisions regarding asylum claims. While there have been suggestions that the latter could be built into EASO’s competencies, it seems unlikely that Member States will permit a centralised agency to assume from them a right to decide who is admitted to their territory, even in the case of asylum seekers. In any case, if the mandate of the agency were expanded, the current capacity of the agency is in no shape to take on any greater role than it already has.

The Commission’s recent Proposal for a European Border and Coast Guard, as an evolution of Frontex, seems perhaps on primary inspection a less bitter pill to swallow for EU Member States. Indeed, recent unilateral action from an increasing number of Schengen States who have reintroduced controls at internal borders points very clearly to the internal Schengen States’ dissatisfaction when it comes to Member States’ ability to effectively manage the large numbers of arrivals at the external borders. However, hopes for a shiny new solidarity tool may be misplaced. The word solidarity appears just two times in the long Commission proposal, which instead seems to use solidarity as a form of punishment against irresponsibility, a punishment which takes the form of the beefed-up agency arriving sur place to take over responsibility for the management of the external borders from Member States deemed to be failing the grade. But is a State’s management of its border not one of the cornerstones of a nation’s sovereignty? Certain interpretations of Article 72 of the TFEU, such as those of Henri Labayle and Steve Peers, expose serious potential legal problems regarding the principle of subsidiarity when it comes to border management issues.

The alternative option to the enhanced interventions of a European Border and Coast Guard, however, look rather grim for Member States such as Greece, who could see itself effectively ostracised from the Schengen Area by its Schengen partners and the Commission. Article 26 of the Schengen Borders Code (SBC) would allow for this de facto ejection from the Schengen space, a reality towards which the EU seemed to be cruising in recent weeks, despite impassioned claims that Schengen must be saved. If Greece was indeed excluded through Article 26 SBC, this could herald the start of even darker times in the search for European solidarity.

Perhaps the newly conceived “hotspots” offer a rosier picture of EU solidarity. In hotspots in Italy, and now finally Greece, Member States are working together thanks to the coordination of agencies such as EASO and FRONTEX. Although the rather vague legal framework for the activities undertaken in hotpots, which include information provision, identification and referral to the host Member States’ officials, has garnered wide criticism, both agencies and governments proclaim the hotspot approach to be a success in the story of solidarity. Although this statement can hardly be made in relation to the numbers of places voluntarily pledged by Member States for relocation, which remain negligible, EASO recognises the progress made in a kind of joint processing of asylum claims shared between Member States. This was taboo just a few years ago but could become a reality with Member States such as Sweden and Germany sending large numbers of experts to work with Italian and Greek colleagues in the hotspots. Nonetheless, despite this recognition of an increased willingness to collaborate, the hotspot approach is far from perfect, and civil society has reported numerous cases of inaccurate registrations, major concerns relating to the identification of vulnerable persons, and the problems of the murky legal framework when it comes to the rights of those subject to hotspot procedures to effectively challenge the hotspot activities and related decisions which affect them, let alone the risks for persons to be detained in hotspots.

It is evident that an institutional approach to solidarity is not without its problems. Not least of these problems is the highly politicised climate in which the question of agency activities is discussed. This highly sensitive environment can lead to falsely elevated expectations from some, or even the tendency to scapegoat the institutional approach where it shows weakness due to limited capacity and resource issues. In this environment, might it perhaps be better to return to basics, instead of trying to reform the agencies and increase their powers? Reform raises a number of sticky issues, such as the existence of a solid legal basis in the treaties, as well as the Meroni doctrine prohibiting the delegation of discretionary powers and the issue of how to ensure effective judicial control over enhanced agency activities. And it is arguably not during the time of a “crisis” that threatens to shake the very foundations of the European Union that one should begin to revise and alter the cornerstones of the institutional framework.

What could perhaps better address the current crisis is a calm and concerted effort to stick to the existing agreements. That means implementing the Common European Asylum System, with the Commission taking its role of guardian of the treaties seriously and issuing infringement procedures against Member States who don’t do enough. That means restoring a functioning Schengen system without prejudice to the rights of asylum seekers as explicitly foreseen in the Schengen Borders Code. That means working collectively to address the apparently increasing disregard for the rule of law in certain Member States. From this solid foundation, the European Union can move towards strengthening the institutional framework in a measured way, without the knee-jerk reactions and political hyperbole that a self-declared crisis engenders.

While this scenario is a possibility, the EU will nevertheless soon have to face a reform of the Dublin system, expected to be presented by the Commission within the coming weeks. Sooner rather than later, the issue of solidarity will reappear on the political agenda, especially if other routes taken by migrants and asylum seekers develop, as seems to be happening again on the sea route from Libya to Italy through Lampedusa. This is actually not a new, but an old story, reminding us of the reality that Member States do not want to see, and which of course has far from disappeared.

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